Cooper v. Robertson Inv. Co.

Citation117 Miss. 108,77 So. 953
Decision Date11 March 1918
Docket Number19949
CourtUnited States State Supreme Court of Mississippi
PartiesCOOPER v. ROBERTSON INVESTMENT COMPANY

Division A

APPEAL from the chancery court of Adams county, HON. R. W. CUTRER Chancellor.

Bill by Tim E. Cooper, assignee and receiver of the Century Banking Company against the Robertson Investment Company, and others. From the decree rendered, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Decree reversed.

Tim E Cooper, for appellant.

The bond for title given by Robertson to Anders was in part execution of a fraudulent scheme to cover his property from creditors, and a court of equity will lend him no aid in enforcing that instrument.

Second. The knowledge of the existence of that bond for title by Robertson, the president of the Century Banking Company, will not be imputed to the bank. Robertson was acting in his own interest, and it was a fraud upon the bank for him to convey the property to it, he having already given the bond for title to Anders. Cook on Corporations, sec. 727; Organized Charities v. Mansfield, 82 Conn. 504; Chestnut, etc., Co. v. Record Publishing Co. 221 Pa St. 235; American, etc., Co. v. Rilez, 70 W.Va. 409; Lee v. Elliott Co., 75 S.E. 146; Roberts v Hughes Co., 83 A. 807; Tegarden v. Lumber Co. , 154 S.W. 973 (Texas.) ; Tate v. Security Co., 63 N.J.Eq. 559; Corcoran v. Snow Castle Co., 141 Mass. 74; Levy v. Kauffman, 114 F. 170; Barnes v. Trenton, etc., Co., 27 N.Y. Eq. 33; Winchester v. Balt. & C. R. R. Co., 4 Md. 231; In re Plankington, 87 Wis. 378; Higgins v. Lansingle, 154 Ill. 301; Wickersham v. Chicago, etc., R. R. Co., 18 Kan. 481; Brookhouse v. Union R. Co., 73 N.H. 368; Georgia, etc., Assn. v. Crane, 137 Ga. 50.

Third. The bank was a purchaser for value without notice, and against a bona-fide purchaser a secret equity cannot avail. Atkinson v. Graves, 70 Miss. 42; Conn v. Boutwell, 101 Miss. 353; Perry on Trusts (6 Ed.), section 218; Barksdale v. Learned, 73 So. 736, 112 Miss. 861.

It is immaterial whether the conveyance by the bank to George H. Robertson, and by him to the Robertson Investment Company were conveyances to a bona-fide purchaser for value. Where one person in a chain of title is a bona-fide purchaser, it is immaterial that his vendee or other subsequently deraigning title through him are or are not bona-fide purchasers. 2 Pom. Eq. (3 Ed.) 254; Atkinson v. Graves, 70 Miss. 42; Barksdale v. Learned, 112 Miss. 861.

Fourth. The bond for title was canceled by written contract made in New Orleans in July, 1912, and it is not competent to modify or control its provisions by a contemporaneous oral agreement. Baum v. Lynn, 72 Miss. 932.

Fifth. Anders accepted the note of the Robertson Investment Company and a mortgage of its property in novation of his debt against Robertson, and since Robertson owned all of the stock of the company this was in equity a valued mortgage. Cook on Corporations, sec. 664; Manufacturing Co. v. Montgomery, 144 Mo.App. 494; Millsaps v. Bank, 71 Miss. 361.

Sixth. Anders knowingly sat by with an unrecorded bond for title and saw the receiver of the bank change its condition by paying out several thousand dollars in protection of the property and this without giving any notice of his claim, and he is therefore now estopped to assert it.

It is to be noted that if either one of these various propositions of the appellant is maintained, the decree of the court below must be reversed and a decree rendered in his favor. It is not necessary that more than one of the propositions we advance shall be sustained.

A. H. Geisenberger and C. A. Goeth, for appellee.

The contention of appellant that the bond for title was a scheme entered into between N. T. Anders and V. Otis Robertson for the purpose of defeating and delaying creditors of Anders and placing the property beyond the reach of his wife, is not sustained by the evidence.

In disposing of the point suffice it to say that a court of equity will not presume fraud, but that it must be proven that the burden to establish fraud was upon appellant, that the great weight of the evidence supported the contention of N. T. Anders, and that the finding of the chancellor who passed upon the evidence is conclusive.

The Century Banking Company was not a bona-fide purchaser for value. A. Because it was charged with notice of the bond for title given by V. Otis Robertson and the bank as surety, to N. T. Anders. B. Because the entire consideration passing from the Century Banking Company to V. Otis Robertson was credited on a preexisting debt due by Robertson to this bank, and such consideration will not support the claim of one as a bona-fide purchaser of property. First Nat'l Bank of Blaine v. Blake, 60 F. 78; Trader Nat'l Bank v. Smith, 22 S.W. 158; Atlantic Cotton Mill v. Indian Orchard Mills 17 N.E. 501; Cook v. American Tubing Co., 9 L. R. A. (N. S.) 210, 211, 212; Holden v. Bank, 72 N.Y. 286; Bank v. Cushman, 121 Mass. 490; First Nat'l Bank v. Town of New Milford, 36 Conn. 93; Loring v. Brodie, 134 Mass. 453; Bank v. Irons, 8 F. 1. Bank v. Smith (Tex. Civ. App.), 22 S.W. 1056, 60 F. 79, 80.

Appellant relies upon the decision of this court in the case of Scott County Milling Co. v. Powers, 73 So., No. 9, p. 792. In reading appellant's brief we are impressed with the fact that appellant seems to assume that this is the first case deciding this principle, and that it was new law, and a shock to the chancellor who tried this case, when in fact, the Scott County Milling Company case enunciated an elementary principle of law as old as the law of principal and agent.

The plainly distinguishing features between the Scott County Milling Company v. Powers case, and this case at bar, are these: In the first case the agent, Coor, resided in Jackson county, Mississippi; his principal, the Scott County Milling Company had its place of business in the state of Missouri; he was local agent and very distant from his principal, with limited authority to sell flour. He also was the manager of the Harding-Coor Company, at Coor's place of residence, whose interest were plainly adverse to the interest of the Scott County Milling Company. In the case at bar, V. Otis Robertson was the president, manager and active executive head of the Century Bank, at the place where the bank was operated; he owned one-half of the stock of the corporation. He acquired his knowledge of the bond for title at a time when there was no adverse interest between Robertson and the bank (if there ever was such adverse interest). The bank having thus acquired the notice when no adverse interest existed, the knowledge of its written contract so executed continued. In the Scott County Milling Company case, the adverse interest arose the moment Coor, as selling agent, attempted to sell to his own company, as buyer. He could not act as agent for two principals under these circumstances and surely could not charge his principal, the Scott County Milling Company with notice.

Under proposition "B" appellee urges that V. Otis Robertson and Dabney, the cashier of the Century Bank, each testified that the consideration passing from me bank to Robertson was thirteen thousand dollars and fifty-seven cents, and that said amount was wholly credited on overdrafts and notes, or other indebtedness due by Robertson to the Century Bank.

Appellant on page 13 of his brief, admits that this was the consideration received by Robertson for the conveyance of the property to the bank. There is no contention that any other consideration was paid to Robertson. Simkins on Contracts and Sales, uses this language: "A preexisting debt is not such a consideration as would support a claim of one as a bona-fide purchaser of property." The Elm Bank case, 72 F. 618; Tarkington v. Purvis, 9 L. R. A. 611.

On July 22, 1912, N. T. Anders, being the owner of an undivided one-half of the Sligo-Overton Plantations, and he being then the holder of said bond for title, the agreement made between him and Robertson, in New Orleans, on that date, did not have the effect of depriving N. T. Anders of his interest in said land and cancelling the bond for title.

Upon the facts heard by the trial court and determined by the trial court, it was found that the agreement of July 22, 1913, did not have the effect contended for by V. Otis Robertson and his receiver, and the decree of the chancellor is conclusive.

The last proposition advanced and urged by appellant is to the effect that Anders is estopped because he sat by and permitted the receiver to take a part of the fourteen thousand dollars paid by Dr. John A. McLeod as a part of the purchase price of this same land (on a trade which Dr. McLeod failed to conclude) and use the same to discharge the Riddick mortgage. There is no intimation in this record that N. T. Anders had any notice of the fact that the receiver was making such payment, and in the absence of such notice N. T. Anders could not be estopped. No act was done by Anders that could constitute one of the essential elements of an estoppel.

"To constitute an estoppel, the following elements are essential (1) There must be conduct, acts, languages, or silence amounting to a representation or a concealment of material facts. (2) These facts must be known to the party estopped at the time of his said conduct, or at least, the circumstances must be such that knowledge of them is necessarily imputed to him. (3) The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time when such conduct was done and at the time when it was acted upon by him. (4) The conduct must be done with the intention or, at least, with the expectation, that it will be acted upon by the other party, or under...

To continue reading

Request your trial
17 cases
  • Fidelity & Deposit Co. v. Merchants' & Marine Bank of Pascagoula
    • United States
    • Mississippi Supreme Court
    • April 23, 1934
    ... ... Co., 105 Miss. 184; Scott County Milling Co. v ... Powers, 112 Miss. 798; Cooper v. Robertson ... Investment Co., 117 Miss. 108; Corsicanna National Bank ... v. Johnson, 251 ... ...
  • Harnischfeger Sales Corporation v. Sternberg Dredging Co
    • United States
    • Mississippi Supreme Court
    • June 3, 1940
    ... ... 792; Ohio Millers Mut. Ins. Co. v. Artesia State ... Bank, 39 F.2d 400; Cooper v. Robertson Inv ... Co., 117 Miss. 108, 77 So. 953; Hirsch Bros. & Co ... v. Kennington, ... ...
  • Fidelity & Deposit Co. v. Merchants' & Marine Bank Of Pascagoula
    • United States
    • Mississippi Supreme Court
    • December 4, 1933
    ... ... v. Fire Ins. Co., 105 Miss. 184; Scott County ... Milling Co. v. Powers, 112 Miss. 798; Cooper v. Robertson ... Investment Co., 117 Miss. 108; Corsicanna National Bank v ... Johnson, 251 U.S ... ...
  • Thompson v. Hill
    • United States
    • Mississippi Supreme Court
    • May 23, 1927
    ... ... 609; ... Hickman Ebbert Co. v. Asa W. Allen Co., 111 Miss ... 161, 71 So. 310; Cooper v. Robertson Inv. Co., 107 ... Miss. 108, 77 So. 953; Cox v. Reed, 113 Miss. 488, 74 So ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT